Opinion
C093530
01-30-2023
In re the Marriage of MANJINDER SINGH and NAMRATA RANDHAWA. v. NAMRATA RANDHAWA, Appellant. MANJINDER SINGH, Respondent,
NOT TO BE PUBLISHED
Super. Ct. No. STA-FL-DWC-2019-0004561
Duarte, Acting P. J.
In this family law case, Namrata Randhawa (mother) and Manjinder Singh (father) were in the process of marriage dissolution when they filed competing requests for a restraining order under the Domestic Violence Prevention Act (DVPA). (Fam. Code, § 6200 et seq.) After a seven-day bench trial, the trial court denied father's request for a permanent domestic violence restraining order (DVRO) against mother, issued mother a three-year DVRO against father, awarded mother and father joint legal and physical custody of their two children, and denied the parties' respective requests for an award of attorney's fees under section 6344.
We refer to the parties as mother and father, as did the trial court.
Undesignated statutory references are to the Family Code.
Mother appeals. She first contends the custody order must be reversed due to the trial court's failure to properly apply section 3044, which creates a rebuttable presumption that an award of joint physical or legal custody of a child to a parent who has perpetrated domestic violence against the other parent within the previous five years is detrimental to the best interests of the child. (§ 3044, subd. (a); see § 3011, subd. (a)(2).) Second, she contends the trial court abused its discretion in denying her request for an award of attorney's fees under section 6344.
As we will explain, we agree with mother. Although she appeals without a reporter's transcript of the relevant proceedings, the record unequivocally shows reversible error. We reverse the custody order and the order denying mother's request for an award of attorney's fees and remand the matter for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
Mother elected to proceed with her appeal on a clerk's transcript and without a reporter's transcript of the relevant proceedings. (Cal. Rules of Court, rules 8.121, 8.122.) This is referred to as a "judgment roll" appeal. (Allen v. Toten (1985) 172 Cal.App.3d 1079, 1082; Krueger v. Bank of America (1983) 145 Cal.App.3d 204, 207.) "The trial court's findings of fact and conclusions of law therefore are presumed to be supported by substantial evidence and are binding upon us, unless the judgment [or challenged order] is not supported by the findings or reversible error appears on the face of the record." (See Krueger, at p. 207; National Secretarial Service, Inc. v. Froehlich (1989) 210 Cal.App.3d 510, 521-522 [when the record on appeal is on the clerk's transcript alone, appellate review is limited to determining whether any error "appears on the face of the record"].)
Petition for Dissolution of Marriage
Mother and father married in May 2016 and have two children together. The couple's son was born in May 2018 and their daughter was born in July 2019. When the daughter was less than two weeks old, father went to India for about two weeks, which made mother upset. According to father, he was visiting his mother, who was "very sick." While father was in India, mother did not allow him to speak with their son.
After father returned to California, he filed a petition for dissolution of marriage on August 22, 2019. At that time, the couple's son was 14 months old, and their daughter was one month old. The petition for dissolution indicated that mother and father separated on August 19, 2019.
Temporary DVROs
On August 23, 2019 (the day after the petition for dissolution of marriage was filed), father filed an ex parte request for a DVRO against mother. In support of his request, father claimed that mother had a history of domestic violence and had hit him four days earlier (on August 19) after he refused to sign a document indicating that she would have "100% custody of [their] kids" if she ever "left" him. As for this incident, father explained he had left the family home with his son after mother hit him, and that mother was arrested later that same day after she followed him to a friend's house with her brother and demanded the return of her son. As for other incidents of domestic violence, father claimed that mother had hit and threatened him during arguments, and that mother had lost "complete control of herself" when she attacked him a few months earlier. During that incident, mother allegedly shook their son "violently." Father requested an order awarding him sole legal and physical custody of the children, with no visitation for mother.
That same day, the trial court issued father a temporary DVRO against mother and granted his custody and visitation requests.
On August 30, 2019, mother filed an ex parte request for a DVRO against father. In support of her request, mother claimed that father drank "heavily on a daily basis" and had "threatened [her] and beat [her] up so many times that in the 3 years [they had] been married [she] ha[d] lived with [her] brother and his wife most of the time." Mother explained that father had "abandoned" the family after the birth of their daughter; he went to India without telling her and without making arrangements for the family's care while he was away. Mother also explained that father had recently taken their children from her care, including their one-month-old daughter who was breastfeeding, "under false pretenses to bully [her] and frighten [her] into following his orders and demands."
In the narrative portion of her request for a DVRO, mother provided a detailed description of the recent altercation with father that resulted in her arrest and father's abuse during the marriage. As for the recent altercation, mother claimed that father had scratched his own neck (or directed his sister to do so) and falsely accused her of hitting him to obtain a restraining order against her and "100% custody of the[ir] kids." As for father's abuse during the marriage, mother claimed that father had raped her, verbally and emotionally abused her, punched and slapped her, pushed her to the ground, denied her food when she was pregnant (which caused her to go into diabetic shock), and stalked her when she stayed with relatives "[a]fter a beating." According to mother, she "lost two . . . babies very early on in the pregnancies . . . because of the [father's] abuse." Mother requested an order directing father to immediately return the children to her care, explaining that she was concerned he would "flee with [the] children to India." Mother also requested an order awarding her sole legal and physical custody of the children, with no visitation for father.
That same day, the trial court issued mother a temporary DVRO against father, set aside the child custody provisions of the temporary DVRO father had obtained against mother, and removed the children as protected parties under that order. Mother was awarded temporary legal and physical custody of the children, with no visitation for father.
Temporary Child Custody and Visitation Order
In late September 2019, a hearing was held on the issues of child custody and visitation. In late October 2019, the trial court issued a findings and order after hearing, which awarded temporary joint legal custody to mother and father, with physical custody to mother and visitation for father that resulted in a 30/70 timeshare arrangement. The trial court ordered mother and father to complete a co-parenting program of their choice and to "maintain a completion certificate for future court hearing." The matter was continued to February 2020 for a hearing on the DVROs and a parenting schedule.
Bench Trial and Order on DVROs and Child Custody and Visitation
Over the course of seven days in February and July 2020, a bench trial was held on the parties' respective requests for DVROs and the issues of child custody and visitation. At the conclusion of the trial, the matter was taken under submission. As we have noted, the appellate record does not include a reporter's transcript of the bench trial. However, the trial court issued a detailed 23-page order on August 12, 2020, which summarized the testimony of the 11 witnesses and identified the specific witnesses the trial court found credible.
In connection with her reply brief, mother filed a motion to augment the appellate record to include the reporter's transcript of the bench trial and the hearing on her motion for reconsideration of the order issued following the bench trial. This court denied the motion, citing Russi v. Bank of America National Trust & Savings Assn. (1945) 69 Cal.App.2d 100, 102 and People v. Preslie (1977) 70 Cal.App.3d 486, 491-492.
As for mother's claims of abuse, the trial court found that four witnesses who testified on her behalf "provided credible, believable, and persuasive testimony as to the abusive nature of [f]ather, and as to specific instances of abuse by [f]ather, and his admissions of abuse." In particular, the court found that, during a recorded phone call, father admitted he had slapped mother and justified his conduct on the ground that he was "now a father." The court also found that father had pushed mother and verbally abused her on multiple occasions in the presence of others. Father's verbal abuse included calling mother a "whore," "mother-fucker," "bitch," and other "derogatory abusive terms."
By contrast, the trial court found that father's claims of abuse were not credible and that it appeared he was "manipulating" law enforcement and the courts to "try and gain an advantage in child custody proceedings, and in the dissolution proceedings." The court explained that father's testimony was not credible in "a number of areas." Specifically, the court rejected father's claim that the admissions of abuse he made in various emails, text messages, and recorded conversations were not truthful because he was only saying what mother "wanted to hear." Father's admissions included, among other things, that he hit mother, refused to provide her with food and then gave her insulin injections, got drunk and beat her with a belt, spent the night in his brother-inlaw's driveway while mother was staying at the residence, and offered mother "100 percent custody of the children in exchange for money." The court also found that father's testimony was not credible insofar as he claimed mother suffered from hallucinations and mental health issues, heard voices, did not properly buckle the children into their car seats, and did not properly care for the children. The court similarly rejected father's claim that mother was "an out of control woman suffering from postpartum depression whom [he was] afraid of."
In granting mother's request for a permanent DVRO against father, the trial court found that father's treatment of her "cause[d] great concern that [he was] controlling in nature" and "displaying stalking tendencies." Although it was "apparent" to the court that mother had "anger issues" and had "lashed out" at father and her own relatives at "various points," the court concluded that father was the primary aggressor in the "physical encounters that . . . occurred between the two parties," and that mother had been the victim of domestic violence "at the hands of [f]ather." The court explained that, had the proceedings been a criminal trial, it would have found father guilty of "various acts" of domestic violence. It noted that mother displayed all "the classic signs of being a battered woman," including reporting father's abuse to medical personnel on several occasions but on other occasions denying there was any abuse. The court explained that there were times when mother asked for "intervention" and other times when she "asked for nothing to happen."
As for mother's credibility, the trial court explained that it did not credit certain portions of her testimony. Specifically, the court did not believe mother's claim that father pinched their son during custody exchanges so that he would cry or that father did not love his children. Further, the court found that mother had not proved, by a preponderance of the evidence, that father had raped her or stolen from her. Notably, however, the court made no finding as to mother's claim that father had repeatedly violated the temporary DVRO, including stalking her while she was at work and "begging" her to see their son on Thanksgiving.
Based on these findings, the trial court denied father's request for a permanent DVRO and terminated the temporary DVRO he had obtained against mother. The court issued mother a three-year DVRO against father. As for child custody and visitation, the court awarded joint legal and physical custody to mother and father, with mother having primary physical custody and visitation for father in accordance with the temporary custody and visitation order. In doing so, the court reasoned that both mother and father had "played a large role in raising and [caring] for the children" and that it saw "no benefit" to the children in changing the order that had been in place since October 2019, noting that "there was zero evidence presented that any change was warranted." The court stated that the custody order was intended to be the final custody order and that it would not be modified absent a "material change in circumstances."
Although the trial court found that joint legal and physical custody was in the best interest of the children, it made no determination that father had overcome the rebuttable presumption set forth in section 3044, which (as noted ante) provides that it is not in a child's best interest to award joint legal or physical custody to a parent who has been found to have committed domestic violence against the other parent within the previous five years. (§ 3044, subd. (a); see § 3011, subd. (a)(2).) The trial court did not apply the section 3044 presumption even though it found that father had committed various acts of domestic violence against mother, and mother, in her trial brief, specifically asked the court to consider section 3044 and "deny custody" to father. As we explain post, the Family Code requires a trial court to consider seven factors in deciding whether the section 3044 presumption has been overcome, among which include whether the perpetrator of domestic violence has successfully completed a batterer's treatment program that meets certain criteria outlined in the Penal Code, complied with the terms of a restraining order, completed a parenting class, and committed further acts of domestic violence. (See § 3044, subd. (b).)
The trial court denied the parties' respective requests for an award of attorney's fees under section 6344.
Mother's Motion for Reconsideration
In September 2020, mother filed a motion for reconsideration, arguing that the trial court erred by failing to apply the rebuttable presumption set forth in section 3044. Mother argued that, because father did not carry his burden to overcome the presumption, the custody order should be modified to award her sole legal and physical custody of the children, with supervised visitation for father. In support of her motion, mother argued that father had not shown that any of the factors listed in section 3044 supported a finding that he had overcome the presumption, and that the trial court erred by failing to consider the relevant factors and state its reasons in writing or on the record for awarding father joint legal and physical custody of the children. As for the section 3044 factors, mother specifically noted that father had not completed any parenting class (including the court-ordered co-parenting program), a batterer's/anger management treatment program, or an alcohol treatment program. Mother also claimed that father had repeatedly violated the temporary DVRO by stalking, harassing, and following her. Mother explained that father's harassment included communicating with her about various topics unrelated to the children in-person, over the phone, in text messages, and via emails. Mother further explained that father directed numerous family members to contact her and insist that she "drop" her request for a DVRO and "work out" her issues with father. Mother asked the trial court to make certain orders to assist father in overcoming the section 3044 presumption, among which included, ordering father to complete a 52-week batterer's/anger management treatment program, participate in an alcohol rehabilitation program, and complete a three-month in-person parenting class.
Father opposed the motion, arguing that he had overcome the section 3044 presumption, although he acknowledged that the trial court did not articulate any reasons explaining how he had done so. In support of his position, father noted that he had recently enrolled in two batterer's prevention classes, there was no factual basis to require him to participate in a program of alcohol abuse counseling, he completed the court-ordered parenting program and voluntarily completed other parenting classes, he was not on parole or probation, he had not violated the terms of the temporary DVRO, and he had not committed any further acts of domestic violence. In connection with his opposition, father submitted evidence showing that he purchased an unspecified domestic violence program on September 24, 2020, eight days after mother filed her motion for reconsideration. The evidence also showed that father completed two parenting programs, the first of which was completed on the day mother's motion for reconsideration was filed, September 16, 2020, and the second was completed the following day. While father claimed that he was currently attending a "52-week batterer's prevention program," the evidence he submitted did not establish as much. In addition to the unspecified domestic violence program discussed above, the evidence submitted by father showed that, on October 3, 2020, he purchased a program described as "Goods or Services." Father did not submit any evidence supporting his contention that he completed the court-ordered co-parenting program.
In December 2020, a hearing was held on mother's motion for reconsideration. As we have noted, the appellate record does not include a reporter's transcript of this hearing and mother's motion to augment was denied.
As relevant here, the minute order issued after the hearing, which was later incorporated into a findings and order after hearing, stated:
"[Mother's] Motion to Reconsider.
"The F.C. [Family Code section] 3020: The Legislature finds and declares that it is the public policy of this state to ensure that children have frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, or ended their relationship, and to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy, except when the contact would not be in the best interests of the child.
"The joint legal and joint physical custody ordered was justified.
"The F.C. [Family Code section] 3044(a): The perpetrator has successfully completed a batterer's treatment program, has successfully completed a program of alcohol or drug abuse counseling. [Father] is to complete his parenting class within the set terms and condition.
"The F.C. [Family Code section] 3044(a) is in the best interest of the children.
"[Mother's] Motion for Reconsideration is Denied."
Appeal
Mother timely appealed in February 2021, and father cross-appealed; his appeal was later dismissed for failure to submit the required filings. Mother's appeal was also dismissed for failure to file required documents but was later reinstated, was dismissed again for failure to file an opening brief, and was again reinstated. The parties requested and were granted multiple extensions of time to file their respective briefs; the case was fully briefed on July 25, 2022, and assigned to this panel on August 31, 2022. The parties requested argument and the case was heard and submitted on January 18, 2023.
DISCUSSION
I
Custody Order
Mother contends reversal is required due to the trial court's failure to properly apply the rebuttable presumption set forth in section 3044. We agree.
A. Applicable Legal Principles and Standard of Review
"Under the DVPA, a court is authorized to issue a protective order '" 'to restrain any person for the purpose of preventing a recurrence of domestic violence and ensuring a period of separation of the persons involved' upon 'reasonable proof of a past act or acts of abuse.'"' [Citations.] Abuse includes 'intentionally or recklessly caus[ing] or attempt[ing] to cause bodily injury'; '[s]exual assault'; 'plac[ing] a person in reasonable apprehension of imminent serious bodily injury to that person or to another'; and 'engag[ing] in any behavior that has been or could be enjoined' under section 6320." (Curcio v. Pels (2020) 47 Cal.App.5th 1, 11.) Behavior that may be enjoined under section 6320 includes, among other things, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, making annoying telephone calls, or disturbing the peace of the other party. (§ 6320, subd. (a).) The phrase" 'disturbing the peace of the other party'" means "conduct that destroys the mental or emotional calm of the other party." (In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1497.)
When deciding whether to grant a request for a DVRO, the trial court has broad discretion also to "make an order for the custody of a child . . . that seems necessary or proper." (§ 3022; see § 3021; Erika K. v. Brett D. (2008) 161 Cal.App.4th 1259, 1268.) The guiding principle for the court in making any custody or visitation order is that the order must be in best interest of the child. (See §§ 3011, 3020, 3040.)
In this context, the Legislature has found and declared that: (1) "it is the public policy of this state to ensure that the health, safety, and welfare of children shall be the court's primary concern in determining the best interests of children when making any orders regarding the physical or legal custody or visitation of children"; (2) "the perpetration of child abuse or domestic violence in a household where a child resides is detrimental to the health, safety, and welfare of the child"; and (3) "it is the public policy of this state to assure that children have frequent and continuing contact with both parents . . . and to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy, except when the contact would not be in the best interest of the child." (§ 3020, subds. (a), (b), italics added.)
To further these policies, section 3044 establishes a rebuttable presumption that awarding physical or legal custody to a parent who has committed domestic violence is detrimental to a child's best interest. As relevant here, section 3044, subdivision (a) provides: "Upon a finding by the court that a party seeking custody of a child has perpetrated domestic violence within the previous five years against the other party seeking custody of the child,. . . there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child ....This presumption may only be rebutted by a preponderance of the evidence." (§ 3044, subd. (a).) "The legal effect of the presumption is to shift the burden of persuasion on the best interest question to the parent who the court found committed domestic violence." (Celia S. v. Hugo H. (2016) 3 Cal.App.5th 655, 662 (Celia S).)
If domestic violence is found, the presumption set forth in section 3044 is mandatory, and the trial court has no discretion in deciding whether to apply it. (In re Marriage of Fajota (2014) 230 Cal.App.4th 1487, 1498 ["A court may not' "call . . . into play" the presumption contained in section 3044 only when the court believes it is appropriate' "]; see also City and County of San Francisco v. H.H. (2022) 76 Cal.App.5th 531, 541 [same].) A finding of domestic abuse sufficient to support a DVRO necessarily triggers the section 3044 presumption. (See S.M. v. E.P. (2010) 184 Cal.App.4th 1249, 1267; see also In re Marriage of Fajota, supra, 230 Cal.App.4th at p. 1500, fn. 10 [if a DVRO has been issued, "then it is clear that there has been a finding of domestic violence sufficient to trigger the presumption of section 3044"].) "The purpose of the rebuttable presumption statute is to move family courts, in making custody determinations, to consider properly and to give heavier weight to the existence of domestic violence." (Jaime G. v. H.L. (2018) 25 Cal.App.5th 794, 805 (Jaime G.).)
To overcome the presumption, the trial court must find that "[t]he perpetrator of domestic violence has demonstrated that giving sole or joint physical or legal custody of a child to the perpetrator is in the best interest of the child pursuant to Sections 3011 and 3020." (§ 3044, subd. (b)(1).)
However, the perpetrator of domestic violence cannot overcome the presumption by relying on the preference for "frequent and continuing contact with both parents, as set forth in subdivision (b) of Section 3020." (§ 3044, subd. (b)(1); Celia S., supra, 3 Cal.App.5th at p. 662.) In awarding custody, the best interest of the child is always the overriding goal, and when there has been domestic abuse, the health, safety, and welfare of the child is the controlling factor. (§ 3020, subd. (c).) In other words, to the extent there is a conflict between subdivisions (a) and (b) of section 3020, subdivision (a)--the health, safety, and welfare of the child--is the paramount consideration. (§ 3020, subd. (c).)
Section 3020, subdivision (b) provides: "The Legislature finds and declares that it is the public policy of this state to ensure that children have frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, or ended their relationship, and to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy, except when the contact would not be in the best interests of the child, as provided in subdivisions (a) and (c) of this section and Section 3011." Section 3011 lists specific factors the trial court must consider, "among any other factors . . . relevant and consistent with Section 3020," in determining the best interest of the child in a custody proceeding: (1) the health, safety, and welfare of the child; (2) any history of abuse by one parent seeking custody against the other parent; (3) the nature and amount of contact with both parents; and (4) the habitual or continual illegal use of controlled substances or the habitual or continual abuse of alcohol or prescribed controlled substances.
Section 3020, subdivision (c) provides: "When the policies set forth in subdivisions (a) and (b) of this section [favoring the health, safety, and welfare of a child (i.e., subdivision (a)) and preference for continuing contact with both parents (i.e., subdivision (b))] are in conflict, a court's order regarding physical or legal custody or visitation shall be made in a manner that ensures the health, safety, and welfare of the child and the safety of all family members."
In deciding whether the presumption has been overcome, the trial court must also find that the factors listed in section 3044, subdivision (b)(2), "on balance, support the legislative findings in Section 3020." (§ 3044, subd. (b).) The six factors the trial court must consider are as follows: "(A) The perpetrator has successfully completed a batterer's treatment program that meets the criteria outlined in subdivision (c) of Section 1203.097 of the Penal Code. [¶] (B) The perpetrator has successfully completed a program of alcohol or drug abuse counseling, if the court determines that counseling is appropriate. [¶] (C) The perpetrator has successfully completed a parenting class, if the court determines the class to be appropriate. [¶] (D) The perpetrator is on probation or parole, and has or has not complied with the terms and conditions of probation or parole. [¶] (E) The perpetrator is restrained by a protective order or restraining order, and has or has not complied with its terms and conditions. [¶] (F) The perpetrator of domestic violence has committed further acts of domestic violence." (§ 3044, subd. (b)(2).)
Importantly, section 3044 mandates that the trial court "make specific findings on each of the factors in subdivision (b)." (§ 3044, subd. (f)(1).) "If the trial court determines a parent has overcome the section 3044 presumption and awards sole or joint custody to a parent who committed domestic violence, the court must state the reasons for its ruling in writing or on the record." (Celia S., supra, 3 Cal.App.5th at p. 662; § 3044, subd. (f)(2).) This means the trial court must make specific findings on each of the factors set forth in section 3044 subdivision (b) when articulating reasons why the presumption has been overcome. (Jaime G., supra, 25 Cal.App.5th at pp. 805-806 [explaining that the requirement of specific findings on each factor furthers the Legislative goal that "family courts to give due weight to the issue of domestic violence"]; see § 3044, subd. (f)(1), (2).)
In addition, subdivision (g) of section 3044 specifies that the trial court must consider whether section 3044 applies before entering anything other than an interim custody order: "In an evidentiary hearing or trial in which custody orders are sought and where there has been an allegation of domestic violence, the court shall make a determination as to whether this section applies prior to issuing a custody order, unless the court finds that a continuance is necessary to determine whether this section applies, in which case the court may issue a temporary custody order for a reasonable period of time, provided the order complies with Sections 3011 and 3020." (Italics added.) This provision was added to the Family Code in 2018 as a "common sense measure to ensure that [s]ection 3044 is actually implemented properly." (Noble v. Superior Court (2021) 71 Cal.App.5th 567, 580 [explaining that the goal of section 3044--to protect children from the known harm of exposure to domestic violence--would be substantially undermined if courts did not have to consider whether the presumption applied upon receiving an allegation of domestic abuse].)
We review child custody and visitation orders for an abuse of discretion and apply the substantial evidence standard to the trial court's factual findings. (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32.) A trial court abuses its discretion in making a child custody order if there is no reasonable basis on which it could conclude that its decision advanced the best interest of the child. (Ibid.) A trial court also abuses its discretion if it applies improper criteria or makes incorrect legal assumptions even though there may be substantial evidence to support the court's order. (Noel v. Thrifty Payless, Inc. (2019) 7 Cal.5th 955, 968; Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435-436; Mark T. v. Jamie Z. (2011) 194 Cal.App.4th 1115, 1124-1125.) "Alternatively stated, if a trial court's decision is influenced by an erroneous understanding of applicable law or reflects an unawareness of the full scope of its discretion, it cannot be said the court has properly exercised its discretion under the law." (F.T. v. L.J. (2011) 194 Cal.App.4th 1, 15; see also David v. Hernandez (2014) 226 Cal.App.4th 578, 592.) "The question of whether a trial court applied the correct legal standard to an issue in exercising its discretion is a question of law [citation] requiring de novo review." (Eneaji v. Ubboe (2014) 229 Cal.App.4th 1457, 1463.)
B. Analysis
As we next explain, we conclude the trial court abused its discretion by failing to properly apply the rebuttable presumption set forth in section 3044.
In its August 2020 order issued after the bench trial, the trial court found that father had committed various acts of domestic violence against mother and issued mother a three-year DVRO against father. However, the trial court failed to apply the section 3044 presumption before awarding father joint legal and physical custody of the parties' children. Instead, the trial court found that the temporary custody and visitation order, which had been in place since October 2019 and provided for joint legal custody with physical custody to mother and visitation for father, was in the best interest of the children. In so finding, the court reasoned that both mother and father had "played a large role in raising and [caring] for the children" and it saw "no benefit" to the children in changing that order, noting that "there was zero evidence presented that any change was warranted."
The trial court's failure to apply the section 3044 presumption was error. (In re Marriage of Fajota, supra, 230 Cal.App.4th at p. 1498 [a trial court "must apply the presumption in any situation in which a finding of domestic violence has been made"].) To justify an award of joint legal and physical custody under the circumstances of this case, the trial court was required to find that father had rebutted the presumption by a preponderance of the evidence. Specifically, the court was required to find that father had met his burden to show that such a custody arrangement was in the children's best interest pursuant to sections 3011 and 3020--without consideration of the statutory preference for "frequent and continuing contact with both parents"--and that the six factors specified in section 3044, subdivision (b)(2), "on balance," supported the legislative findings in Section 3020. (§ 3044, subds. (a), (b).) And the trial court was required to make specific findings on each of the factors listed in section 3044, subdivision (b) when articulating reasons why the presumption has been overcome. (Jaime G., supra, 25 Cal.App.5th at p. 805; § 3044, subd. (f)(1), (2).) It does not appear from the face of the record that any of these requirements were satisfied here. Further, as we next explain, to the extent the required findings were purportedly made at a later time, they were largely unsupported by the evidence in the record.
The trial court's error was compounded by its failure to properly reassess the custody order in response to mother's motion for reconsideration. In its December 2020 order denying that motion, the court found its August 2020 custody order was "justified." As we have set forth ante, the record on its face, in the form of the findings and order issued after the denial of mother's motion to reconsider, shows the court relied on the statutory preference for "frequent and continuing contact with both parents," in finding its earlier order "justified." This is a consideration that section 3044, subdivision (b) expressly forbids. (§ 3044, subd. (b)(1).) The court's erroneous application of the applicable law is an abuse of discretion. (See Ellis v. Lyons (2016) 2 Cal.App.5th 404, 417-418 [trial court abused its discretion by considering the preference for frequent and continuing contact with both parents in deciding whether the perpetrator of domestic overcame the section 3044 presumption].) Further, the court's written order does not include specific findings as to each of the factors listed in section 3044, subdivision (b), as required to be made either on the record or in writing by the express terms of section 3044, subdivision (f). The order contains no findings on several of the factors, including findings as to whether father had complied with the terms of the temporary DVRO and whether father had committed any further acts of domestic violence. (See § 3044, subd. (b)(2).) Although father argues that we must assume the required findings were made orally at the hearing, we see nothing in the record supporting the notion that any such findings could have been properly made orally in the portion of the record that we are missing. The incomplete findings that are contained in the trial court's written order denying mother's motion for reconsideration are themselves made largely without evidentiary support, and nothing appears in the record that would provide evidentiary support for the missing findings. For example, the written order found that father had successfully completed a batterer's treatment program and a program of alcohol or drug abuse counseling. But in response to mother's motion for reconsideration (heard in midDecember 2020), father claimed that he was currently attending batterer's prevention classes as part of a 52-week batterer's prevention program that began in mid-September 2020. Completion of the 52-week program would simply not have been possible in three months. Father also claimed he did not need to participate in a program of alcohol counseling. And father never claimed that he completed a program for drug counseling. This evidence is directly contradictory to the trial court's written findings.
Citing S.Y. v. Superior Court (2018) 29 Cal.App.5th 324, father argues that the trial court was not required to make specific findings on each of the factors listed in section 3044, subdivision (b). We reject this argument. In 2018, the Legislature amended section 3044 to add subdivision (f), which requires that the court, in determining that the presumption in subdivision (a) has been overcome, "make specific findings on each of the factors in subdivision (b)" and to state the reasons for its ruling in writing or on the record. (Stats. 2018, ch. 941, § 3; see § 3044, subd. (f)(1), (2).) To the extent S.Y. holds otherwise, we decline to follow it. (See S.Y., at pp. 345-346.)
We are well-aware of the fundamental rule of appellate review that judgments and orders of the trial court are presumed correct and prejudicial error must be affirmatively shown. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) The appellant (mother) has the burden of providing an adequate record demonstrating error, and the failure to provide an adequate record of the relevant proceedings requires the issue to be resolved against her. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296; Jade Fashion & Co., Inc. v. Harkham Industries, Inc. (2014) 229 Cal.App.4th 635, 644.) However, while the appellate record does not include the reporter's transcript of the hearing on mother's motion for reconsideration, the record does include the trial court's written order issued after the hearing. It is this order and the court's earlier August 2020 order that are challenged on appeal, and the presumption of correctness only applies to "matters as to which the record is silent." (Denham, at p. 564.) As we have explained, the challenged orders affirmatively show reversible error on their face.
The trial court's failure to properly apply the applicable law was an abuse of discretion.
As such, we will reverse the custody order and remand the matter to allow the trial court to reconsider the issue of custody under the proper legal framework. (See Abdelqader v. Abraham (2022) 76 Cal.App.5th 186, 198 [reversing and remanding to allow trial court to "properly consider section 3044"]; Jaime G., supra, 25 Cal.App.5th at p. 809 [reversing and remanding for trial court "to hold a new hearing and to provide [the required] statement of specific reasons"]; Ellis v. Lyons, supra, 2 Cal.App.5th at pp. 417418 [reversing and remanding because the custody order was infected by legal error; that is, the trial court's consideration of the preference for frequent and continuing contact with both parents].) In deciding whether father has met his burden to overcome the section 3044 presumption, the trial court shall consider all relevant evidence about the parties' conduct, including the parties' conduct following the August 2020 custody order.
In view of our determination that the matter must be remanded for the trial court to reconsider the issue of custody under the proper legal framework, we need not and do not discuss mother's due process argument and other arguments related to the merits of the custody order. [*] Retired Associate Justice of the Court of Appeal, Third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
II
Attorney's Fees
Mother contends the trial court abused its discretion in denying her request for an award of attorney's fees under section 6344. We agree.
A. Additional Background
In her trial brief, mother requested an award of attorney's fees under section 6344 in the amount of $10,000. Mother argued that she was entitled to such an award because father had filed a "false domestic violence action against [her]," and because father had "engaged in several different types of domestic violence against her."
Father also requested an award of attorney's fees under section 6344. In his trial brief, father asked for "reasonable attorney fees to defend [against] this action."
As detailed ante, the trial court ruled in favor of mother on the parties' competing claims of domestic abuse, finding that father's claims of abuse were not credible, and that father had committed various acts of domestic violence against mother. As a result, the court denied father's request for a permanent DVRO, terminated the temporary DVRO he had obtained against mother, and issued mother a three-year DVRO against father.
In denying the parties' respective requests for attorney's fees, the trial court explained: "Both parties have been extremely litigious in this proceeding, and neither side showed any interest in resolving the matter short of a contested hearing. As such, each party is responsible for their own legal fees."
B. Applicable Legal Principles and Standard of Review
"The purpose of the DVPA is 'to prevent acts of domestic violence, abuse . . . and to provide for a separation of the persons involved in the domestic violence for a period sufficient to enable these persons to seek a resolution of the causes of the violence.'" (In re Marriage of Fregoso &Hernandez (2016) 5 Cal.App.5th 698, 702.) "The DVPA permits a court, upon a showing of 'reasonable proof of a past act or acts of abuse' [citation], to issue a protective order restraining any person from contact, for the purpose of preventing a recurrence of domestic violence." (Id. at p. 702.)
Section 6344 is part of the DVPA. It authorizes an award of attorney's fees and costs to the prevailing party in a proceeding concerning a DVRO. (See § 6344, subds. (a), (b); Loeffler v. Medina (2009) 174 Cal.App.4th 1495, 1508.) Subdivision (a) of section 6344 provides, "After notice and a hearing, the court may issue an order for the payment of attorney's fees and costs of the prevailing party." (Italics added.) By contrast, subdivision (b) of section 6344 provides, "In any action in which the petitioner is the prevailing party and cannot afford to pay for the attorney's fees and costs, the court shall, if appropriate based on the parties' respective abilities to pay, order that the respondent pay petitioner's attorney's fees and costs for commencing and maintaining the proceeding. Whether the respondent shall be ordered to pay attorney's fees and costs for the prevailing petitioner, and what amount shall be paid, shall be determined based upon (1) the respective incomes and needs of the parties, and (2) any factors affecting the parties' respective abilities to pay." (§ 6344, subd. (b), italics added.) Thus, the statute makes an award of attorney's fees mandatory when the petitioner is the prevailing party and cannot afford to pay attorney's fees and costs, and such an award is appropriate based on the parties' financial circumstances (§ 6344, subd. (b)), while in all other circumstances an award of prevailing party attorney's fees is discretionary (§ 6344, subd. (a)).
The standard of review for an order granting or denying a motion for attorney's fees under the Family Code is abuse of discretion. (In re Marriage of Turkanis &Price (2013) 213 Cal.App.4th 332, 345; see Loeffler v. Medina, supra, 174 Cal.App.4th at p. 1509 [reviewing an award of attorney's fees pursuant to section 6344 for abuse of discretion].)" 'All exercises of discretion must be guided by applicable legal principles. . . . [Citations.] If the court's decision is influenced by an erroneous understanding of applicable law or reflects an unawareness of the full scope of its discretion, the court has not properly exercised its discretion under the law. [Citation.] Therefore, a discretionary order based on an application of improper criteria or incorrect legal assumptions is not an exercise of informed discretion and is subject to reversal.'" (David v. Hernandez, supra, 226 Cal.App.4th at p. 592.) "The question of whether a trial court applied the correct legal standard to an issue in exercising its discretion is a question of law [citation] requiring de novo review." (Eneaji v. Ubboe, supra, 229 Cal.App.4th at p. 1463.)
C. Analysis
We conclude the trial court abused its discretion in denying mother's request for attorney's fees. For purposes of section 6344, mother was the prevailing respondent and the prevailing petitioner on the parties' respective requests for a permanent DVRO. Thus, in ruling on mother's request for attorney's fees, the trial court was required to hold a hearing to determine whether mother could afford to pay attorney's fees and whether an award of attorney's fees was appropriate based on the parties' financial circumstances. (§ 6344, subd. (b).) In making these determinations, the court was required to consider the parties' respective incomes and needs, as well as any other factors affecting the parties' respective abilities to pay. (Ibid.) None of these requirements were satisfied here. Instead, the court denied mother's request for attorney's fees on the ground that she had been "extremely litigious" and showed no "interest in resolving the matter short of a contested hearing." Because the record discloses that the court did not apply the correct legal standard, we will reverse the attorney's fee order and remand the matter to the trial court for further proceedings.
We note that the Legislature recently repealed section 6344 and added a new version of the statute. (§ 6344, as amended by Stats. 2022, ch. 591, § 1.) Because the new version of section 6344 was not passed as an urgency measure, it became effective on January 1, 2023. (Cal. Const., art. IV, § 8, subd. (c)(1).) The new section 6344 provides as follows:
"After notice and a hearing, a court, upon request, shall issue an order for the payment of attorney's fees and costs for a prevailing petitioner.
"(b) After notice and a hearing, the court, upon request, may issue an order for the payment of attorney's fees and costs for a prevailing respondent only if the respondent establishes by a preponderance of the evidence that the petition or request is frivolous or solely intended to abuse, intimidate, or cause unnecessary delay.
"(c) Before a court awards attorney's fees and costs pursuant to this section, the court shall first determine pursuant to Section 270 that the party ordered to pay has, or is reasonably likely to have, the ability to pay." (§ 6344, as amended by Stats. 2022, ch. 591, § 2, italics added.)
By its express terms, the new law requires a trial court to award attorney's fees to a prevailing petitioner and permits a court to award attorney's fees to a prevailing respondent if the request for a DVRO was frivolous or solely intended to abuse, intimidate, or cause unnecessary delay. However, prior to making an award of attorney's fees, the trial court must consider whether the party ordered to pay attorney's fees "has, or is reasonably likely to have, the ability to pay." (§ 6344, as amended by Stats. 2022, ch. 591, § 2.)
On remand, the trial court shall, after notice and a hearing, decide whether mother is entitled to an award of attorney's fees under section 6344. In doing so, the court shall determine in the first instance whether the new version of the statute applies. We express no opinion on this issue. We simply note that a change in a remedial or procedural statute (including a statute authorizing an award of attorney's fees) will generally apply to actions that are pending when the statute becomes effective. (See City of Clovis v. County of Fresno (2014) 222 Cal.App.4th 1469, 1483-1485 [explaining that, "[i]n numerous cases, it has been held that new statutes allowing awards of attorney fees are applicable to litigation pending when the statutes came into effect, even though they were not in effect when the underlying facts took place"].)
III
Remaining Issues
We decline mother's invitation to "issue clear instructions" to the trial court to "review the findings and order [a]lcohol [t]reatment prior to issuing a joint custody order of any kind." The trial court is best situated to decide the issue of custody in the first instance in accordance with the views expressed in this opinion and make appropriate orders based on the evidence before that court, including any evidence as to father's abuse of alcohol.
We also decline mother's unsupported request to "order the Superior Court to assign a different bench officer on remand." Code of Civil Procedure section 170.1, subdivision (c) provides: "At the request of a party or on its own motion an appellate court shall consider whether in the interests of justice it should direct that further proceedings be heard before a trial judge other than the judge whose judgment or order was reviewed by the appellate court." An appellate court must exercise its power to disqualify a judge under this statute sparingly, and only when the interests of justice require it. (Peracchi v. Superior Court (2003) 30 Cal.4th 1245, 1256; In re Marriage of Walker (2012) 203 Cal.App.4th 137, 153.)
As an initial matter, we conclude that mother has forfeited consideration of this issue by failing to provide pertinent authority and legal analysis explaining why the relief she requests is warranted. (United Grand Corp. v. Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 165, fn. 6.) In any event, we see no basis for granting mother's request. Mother does not identify the specific ground for disqualifying the trial judge. Instead, she complains that the trial judge made decisions without applying the correct legal standard. A proper ground for disqualification includes circumstances where "[a] person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial." (Code Civ. Proc., § 170.1, subd. (a)(6)(A)(iii).) However, "[m]ere judicial error does not establish bias and normally is not a proper ground for disqualification." (People v. LaBlanc (2015) 238 Cal.App.4th 1059, 1079; see In re Marriage of Walker, supra, 203 Cal.App.4th at p. 153 [legal error alone does not create the appearance of bias, must less establish bias].) Having reviewed the record, we are not convinced that the trial judge was biased or prejudiced against mother such that the matter should be assigned to a different judge to ensure that mother obtains a fair hearing on the issue of child custody. Accordingly, we deny mother's request to order that the matter be heard before a different judge on remand.
DISPOSITION
The custody order and the order denying mother's request for attorney's fees are reversed. The matter is remanded to the trial court with directions to reconsider the issue of custody based on the presumption set forth in section 3044. The trial court shall also reconsider mother's request for attorney's fees in accordance with the terms of section 6344 and the directions in this opinion. Mother shall recover her costs on appeal. (Cal. Rules of Court, rule 8.278(a).)
We concur: Renner, J. Hoch, J. [*]